United States v. Ressam, No. CR 99-666 C (W.D. Wash. 4/3/2001)
| Decision Date | 03 April 2001 |
| Docket Number | No. CR 99-666 C.,CR 99-666 C. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. AHMED RESSAM, Defendant. |
| Court | U.S. District Court — Western District of Washington |
NOW COMES the defendant, Ahmed Ressam, by undersigned counsel, and asks this Court to consider the following memorandum of law in support of his motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29(a).
Count 7 of the Second Superseding Indictment alleges:
(Transportation of Explosives)
On or about December 14, 1999, at Port Angeles, in the Western District of Washington, AHMED RESSAM and ABDELMAJID DAHOUMANE, not being licensees or permittees under the provisions of Chapter 40 of Title 18 of the United States Code, knowingly transported and shipped, and caused to be transported and shipped, in interstate and foreign commerce, from Canada into the United States, explosive materials, that is, hexamethylene triperoxide diamine, cyclotrimethylene trinitramine, and a nitroglycerine equivalent identified as ethylene glycol dinitrate.
All in violation of Title 18, United States Code, Sections 842(a)(3)(A); 844(a); and 2.
The defendant's Motion for Judgement of Acquittal on Count 7 must be granted because Mr. Ressam's conduct fits within 18 U.S.C. § 845, a statutory exception to the charged offense. In United States v. Petrykievicz, 809 F. Supp. 794 (W.D. Wash. 1992),1 the Court, relying on United States v. Illingworth, 489 F.2d 264 (10th Cir. 1973), held that the 18 U.S.C. § 845 exception to 18 U.S.C. §§ 842(a)(3)(A) and 844(a) is applicable when the Department of Transportation regulates explosive materials. 809 F.Supp. at 799. The Department of Transportation regulates the three explosive materials carried by Mr. Ressam on the ferry vessel. Accordingly, the government cannot convict Mr. Ressam of 18 U.S.C. §§ 842(a)(3)(A) and 844(a) and Mr. Ressam must be acquitted of the violations alleged in Count 7.
Chapter 40 of Title 18 of the United States Code contains statutes regulating the importation, manufacture, distribution, and storage of explosive materials. Chapter 40 consists of sections 841 through 848 of Title 18. Sections 842(a)(3)(A) and 844(a) of Title 18, the violations alleged in Count 7 of the indictment, proscribe the transportation of explosives in interstate or foreign commerce. Congress, however, also created an exception to the application of those sections of Chapter 40. Title 18 U.S.C., § 845, entitled "Exceptions; relief from disabilities," provides, in pertinent part:
(a) Except in the case of subsections (l), (m), (n), or (o) of § 842 and subsections (d), (e), (f), (g), (h), (i), of section 844 of this title, this chapter [i.e., Chapter 40] shall not apply to:
(1) any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the United States Department of Transportation and agencies thereof, and which pertain to safety:
18 U.S.C. § 845(a)(1) (emphasis added). In enacting this exception, Congress intended that certain provisions of Chapter 40, including §§ 842(a)(3)(A), and 844(a), would not be applicable to aspects of the transportation of explosive materials regulated by the Department of Transportation. H.Rep. No. 91-1549, 91st Cong., 2d Sess. 2 (1970), reprinted in 1970 U.S. Code Cong. and Admin. News 4047.
Thus, under § 845(a)(1), a person cannot be convicted of a violation of Chapter 40 for conduct which is regulated by the Department of Transportation, unless the charge falls within the enumerated sub-sections for which prosecution is still permitted. The conduct which forms the basis of the charge and evidence in Count 7 of the indictment against Mr. Ressam, the transportation of the listed chemicals, is regulated by the Department of Transportation. See, e.g., 49 C.F.R. § 172.101 (1999).2 The Department of Transportation regulates many aspects of the transportation in interstate and foreign commerce of the explosives allegedly transported by Mr. Ressam.3 Therefore, his conduct falls within the exception to Chapter 40 violations created by Congress in § 845(a)(1), and Count 7 of the indictment must be dismissed.
In United States v. Petrykievicz, Judge Zilly granted the defendant's motion for judgment of acquittal of a count charging the identical offense charged in Count 7 of the indictment against Mr. Ressam, i.e., §§ 842(a)(3)(A), and 844(a), based on precisely the same argument raised herein. To that point, the only circuit court that had analyzed this issue was United States v. Illingworth, 489 F.2d 264 (10th Cir. 1973),4 which had reached the same result.
Like Mr. Ressam, the defendant in Petrykeivicz was charged with knowingly transporting and shipping and causing to be transported and shipped in foreign commerce an explosive material. On a commercial flight from London, England to Seattle, Washington, Mr. Petrykeivicz carried a safety fuse and approximately one pound of explosive materials, pentaerythritol tetranitrate (PETN), in his luggage. 809 F.Supp. at 795. Applying § 845's exception, Judge Zilly dismissed the counts against Mr. Petrykievicz alleging criminal violations under U.S.C. §§ 842(a)(3)(A) and 844(a). The Court stated that "[i]t is undisputed that the Department of Transportation regulates some aspects of the transportation of explosive materials, including PETN and safety fuses." Id. at 796. The Court reasoned that because some aspects of the transportation of explosives are regulated by the Department of Transportation, the exception of § 845 applies to all aspects of the transportation of explosive materials. Id. Although the Court concluded that § 845 is ambiguous, the Court applied the rule of lenity in the construction of the statute and concluded that the Department of Transportation's regulation of the explosive materials made the exception applicable. Id. at 799.
In Illingworth, the Tenth Circuit applied § 845's exception to a prosecution commenced under the same statute involved here, 18 U.S.C. § 842 (a)(3). The defendant in Illingworth was charged with transporting dynamite in interstate commerce. The Tenth Circuit held that § 845's exception prohibited the defendant's conviction under § 842(a)(3)(A) because the transportation of dynamite — like the transportation of ethylene glycol dinitrate, hexamethylene triperoxide diamine, and cyclotrimethylene trinitramine — is regulated by the Department of Transportation. Illingworth, 489 F.2d at 265-66. In reaching its decision the Illingworth Court tracked the various statutory and regulatory provisions providing the Department of Transportation with the authority to regulate the transportation of certain explosives. Thus, the Court concluded that:
[t]here is no ambiguity in the statutory exception; nor is there any question of the existence of alternative statutes open to the prosecution in this case by reason of the explicit exception in 18 U.S.C. § 845(a)(1) to Section 842's application. Congress has provided this exception to permit regulation by appropriate authorities and they have done so.
Illingworth, 489 F.2d at 266. Because § 845's "exception refers to materials which are regulated by the Department, Illingworth, 489 F.2d at 265 (emphasis in original), Mr. Illingworth could not be convicted under § 842(a)(3). Just as the dynamite that Mr. Illingworth carried on an airplane fell within § 845's exception, so too does the ethylene glycol dinitrate, hexamethylene triperoxide diamine, and cyclotrimethylene trinitramine allegedly carried by Mr. Ressam.
Subsequently, the Ninth Circuit has implicitly approved the reasoning of Illingworth and Petrykievicz, although declining to apply the exception to the facts before it. United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999). In Fiorillo, the defendant was receiving explosives without a license. The § 845(a)(1) exception did not apply because that exception "by its own terms only applies to the transportation of explosives, not the receipt of explosives." Id. On this basis, the Ninth Circuit distinguished Illingworth and Petrykievicz, which did relate to transportation, id. at 1153 n. 29; this same distinction applies to Mr. Ressam. Whereas the defendant in Fiorillo "interpret[ed] the exception too broadly," id. at 1153, Mr. Ressam comes squarely within its terms, as construed by the Ninth Circuit.
The Secretary of Transportation has been specifically empowered to designate materials as hazardous and to prescribe rules and regulations for the safe transportation of hazardous materials in intrastate, interstate, and foreign commerce. 49 U.S.C. § 5103. In accordance with this power, the Secretary of Transportation has designated a number of "hazardous materials," including explosives, which are regulated or forbidden from transportation on vessels. 49 C.F.R § 172.101; 49 C.F.R. § 176.3(b). The Code of Federal Regulations includes a table designating these regulated materials. 49 C.F.R § 172.101. Hexamethylene triperoxide diamine, cyclotrimethylene trinitramine, and ethylene glycol dinitrate are among the list of hazardous materials regulated by the Department of Transportation. Id.
The regulations provide that hexamethylene triperoxide diamine and ethylene glycol dinitrate are absolutely forbidden from transportation on vessels. 49 C.F.R. § 176.3(b). The regulations classify cyclotrimthylene trinitramine as a Division 1.1 explosive with a mass explosion hazard. § 172.101; see generally Illingworth, 489 F.2d at 265 (...
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